Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Election Petition No. S – 12 of 2018

 

Before :

Mr. Justice Muhammad Shafi Siddiqui

 

 

Date of hearing        :           13.12.2018 and 22.01.2019.

 

Date of judgment     :           07.03.2019.

 

 

Mr. Humayoun Sheikh, Advocate for the petitioner.

Mr. Abdul Sattar Pirzada assisted by Mr. Mamoon N. Chaudhry, Advocates for respondent No.5.

Mr. Irfan Ahmed Memon, Deputy Attorney General.

Mr. Shahryar Imdad Awan, Assistant Advocate General Sindh.

 

 

O R D E R

 

MUHAMMAD SHAFI SIDDIQUI, J. – This Election Petition is in respect of provincial constituency PS-III, District Jacobabad. Petitioner, as a result of notification declaring respondent No.5 as a returned candidate, was a runner up. Aggrieved of the notification, result and election process, described in the memo of petition, the petitioner has filed this Election Petition under section 139 of the Election Act, 2017.

2.         After service, as required under law, respondent No.5 filed written statement whereas no one else marked appearance except Assistant Advocate General. Election Commission of Pakistan, Provincial Election Commissioner, Returning Officer and District Returning Officer were also arrayed as respondents No.1 to 4, with other private respondents, but none appeared to represent them.

3.         Issues were framed on 06.11.2018, which include a preliminary issue, regarding maintainability of this petition, which was heard first and is being decided through this order. The said issue, for convenience sake, is reproduced as under:

“ Whether the petition is maintainable in terms of Sections 142, 143 and 144 of Elections Act, 2017? ”

4.         Mr. Abdul Sattar Pirzada, learned counsel for respondent No.5, on 13.12.2018 addressed on the maintainability of this petition, which arguments were replied by learned counsel for petitioner on 22.01.2019 and the matter was then reserved.

5.         Three points were raised by the respondent’s counsel to support rejection of petition under section 142, 143 and 144 of the Elections Act, 2017.

Point No.1: Whether the petition was not verified in the manner as laid down in the Code of Civil Procedure?

Point No.2: Whether every schedule or annexure to the petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings?

Point No.3: Whether petitioner has not provided full particulars of the corrupt and/or illegal practice or other illegal acts, alleged to have been committed during the election?

6.         Learned counsel for respondent No.5 in support of first point has submitted that petition should have been supported by verification clause and since the petition is devoid of it, it would trigger the relevant section as quoted above and being special law entails its rejection. Counsel has relied upon page 23, which is verification and submits that it is not in consonance with the requirement of law.

7.         It is claimed that Rule 15 of Order VI requires that the pleading shall be verified on oath or solemn affirmation at the foot of the pleadings by the party or by one of the parties or by some other persons proved to the satisfaction of the Court to be acquainted with the facts of the case and that it should be with reference to the paragraphs of the pleadings as to what he or she verifies of his/her own knowledge or what he/she verifies upon information received and believed to be true. Learned counsel has relied upon the case of Sultan Mahmood Hinjra v. Malik Ghulam Mustafa Khar (2016 SCMR 1312), Zia-ur-Rehman v. Syed Ahmed Hussain (2014 SCMR 1015), Iqbal Zafar Jhagra v. Khalilur Rehman (2000 SCMR 250) and the case of Sardarzada Zafar Abbas v. Syed Hassan Murtaza (PLD 2005 SC 600).

8.         Learned counsel for the petitioner on the other hand however refuted the contentions as raised by learned counsel for the respondent No.5 and contended that petition is verified as required under the law and the law relating to signing of documents is not so rigid that it may entail rejection of petition. Petitioner submits that all relevant facts have been pleaded and full particulars have been provided.

9.         I have heard the learned counsel for the parties and perused the material available on record.

10.       I have perused the verification page and so also the affidavit filed in support of memo of Election Petition, available at page 27 and 27A, which were not considered by respondent No.5. At times the distinction of the paragraphs with reference to the personal knowledge of the petitioner and with reference to the advice or information received from an expert or an advocate is inevitable but not always.

11.       I have already held in another case bearing Election Petition No. S‑21 of 2018 as under:

“ 8.      In the first instance, I have perused the verification clause of the petition, which is also supported by an affidavit in support of the memo of election petition. The verification page, at page 17, provides that the contents of the aforesaid paras No.1 to 19 are true and correct to the best of his knowledge, belief and information. A situation cannot be eliminated / precluded that a petitioner may, on his personal knowledge, verify the contents of the “entire petition” to be true according to his own belief, information and knowledge. Hence, this verification insofar as the paragraph wise verification as required under the law is concerned, stands satisfied. ”

12.       There could be a possibility that a petitioner may verify all contents of the petition i.e. all paragraphs of the petition to be true and correct to the best of his knowledge and belief. He (petitioner) thus cannot be coerced to distinguish the factual narration as well as legal narration distinctively as he may do so upon his own knowledge. He may have gone through the relevant law and may have verified the same on the strength of such information and knowledge acquired by going through the law. Thus, I do not find this verification, wherein contents of the entire petition (all paragraphs) were stated to be true and correct to the best of petitioner’s knowledge and belief, to be contrary to the 2nd limb of Order VI Rule 15 CPC.

13.       The other (1st) limb of Order VI Rule 15 CPC requires that pleadings shall be verified on oath or solemn affirmation, which is described and elaborated by Hon’ble Supreme Court in a number of cases. It is not necessary that it should be at the foot of pleadings where the verification is to be done. It could be done through a separate affidavit attached to the petition. Such affidavits are attached at page 27 and 27A in particular. The contents of affidavit in support of memo of election petition at page 27A are reproduced as under:

“ Mr. Abdul Razzaque Khan Son of Sardar Mohammad Muqeem Khan, resident of Mohalla Old Municipal Road, Jacobabad, affirmed on oath before me at SUKKUR on this 18-SEP-2018 in the ‘Identity Section’ of this court. ”

14.       The oath was specific, date and place is also available. Thus, I find Order VI Rule 15 CPC to have been complied with in letter and spirit.

15.       The other point is in respect of signing of the schedule or annexures attached to the petition. The earlier law i.e. ROPA 1976 with reference to this particular ground has taken a distinctive turn as far as Elections Act, 2017 is concerned. Section 55(3) of the ROPA 1976 provides that every Election Petition and every schedule or annexures to the petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of the pleadings. Section 144(4) of the Elections Act, 2017 however has been re-drafted in comparison to the earlier law of this subject. It now provides that an Election Petition and its annexures shall be signed by the petitioner and the petition shall be verified in the manner laid down in the Code of Civil Procedure for the verification of the pleadings.

16.       It means that annexures are no more required to be verified in the manner laid down in the Code of Civil Procedure which was different additional requirement of law. Documents now only require to be signed in respect and support of the pleadings, which pleadings are to be verified on oath. Had there been additional documents or a document in addition to the pleadings, it may be subjected to such requirement to be verified but since this is not the object here, as these documents are only in support of pleadings, therefore, requirement is only to sign and not to verify. So, I would score off this point from consideration as far as rejection of the petition is concerned.

17.       As to third point in respect of providing full particulars of any corrupt or illegal practices, alleged to have been committed in the course of election, paragraph 4 of the pleadings provides the date of election. It is stated that polling started at 8:00 a.m. and ended at 6:00 p.m. It also provides that several polling agents of the petitioner were turned out of the polling stations and the doors were closed and thus polling agents informed petitioner of such fact on cellphone. Those polling agents were named as Illahi Bux son of Ghulam Hussain, Rub Dino son of Muhammad Ramzan, Anwar Ali son of Huzoor Bux and Zafarullah son of Naimatullah. It has also been maintained that these polling agents reached the Election Office of the petitioner in between 7:00 to 7:30 p.m. and informed him accordingly who approached returning officer at 8:30 p.m. along with aforesaid polling agents. It is further pleaded that the petitioner approached / visited different polling stations along with above named polling agents i.e. polling stations No.126, 128 and 129 but were not allowed to enter in the polling stations on the ground that the ballot papers were under process of counting, in the absence of polling agents.

18.       In paragraph 5, petitioner pleaded that while he was available in his office he received Form 45/result of polling stations 8, 13, 17, 18, 34, 36, 44 …………299. He also pleaded in paragraph 6 that media announced unofficial result at 7:00 p.m. In paragraph 7 petitioner pleaded rigging and stamping of ballot papers of the votes of respondent No.5, specially at polling stations where respondent No.5 had strong hold. The petitioner pleaded with particular reference to Section 144(1)(b) of the Elections Act, 2017.

19.       ‘Pleading’ is general structure of facts and allegations. Black’s Law Dictionary provides it to be “A formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials, or defenses. In civil procedure, the main pleadings are the plaintiff’s complaint and the defendant’s answer”. The pleadings get support and strength through the evidence to be recorded in support thereof. Thus, it needs not to be an encyclopedia, it should contain material facts, allegations and grounds with particular references, which in the present case, are available.

20.       In the circumstances, I do not find any of the grounds available, as argued by the respondent’s counsel which could support rejection of the petition on the touchstone of Sections 142, 143 and 144 of the Elections Act, 2017. The issue as to the maintainability is thus answered in affirmative and petition is being held as maintainable. Let the matter be fixed for further proceedings / evidence in the 1st week of April 2019.

 

 

 

J U D G E